In re K.S. , 2022 UT App 68 ( 2022 )

2022 UT App 68THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF K.S. AND C.S.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
C.G.S.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Amended Opinion 1
No. 20210520-CA
Filed May 26, 2022
Fourth District Juvenile Court, Heber City Department
The Honorable Brent H. Bartholomew
No. 1041288
Sheleigh A. Harding and Beau Dean Blackley,
Attorneys for Appellant
Sean D. Reyes, Carol L. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
HARRIS, Judge:
1. This Amended Opinion replaces the Opinion in Case No.
20210520, issued on April 28, 2022. After our previous opinion
issued, the Guardian ad Litem filed a petition for rehearing. We
grant that petition, at least in part, and hereby amend footnote 12
as requested.
In re K.S.
¶1 After a bench trial, the juvenile court terminated C.G.S.’s
(Father) parental rights regarding K.S. and C.S. (collectively, the
Children). The court determined that multiple statutory grounds
for termination were present and that it was in the Children’s best
interest for Father’s rights to be terminated. Father now appeals,
and we affirm.
BACKGROUND
¶2 Father is the biological father of C.S. (born in 2009), and
asserts that he is the biological father of K.S. (born in 2007),
although his parental rights with regard to K.S. have never been
established. Both Children share the same mother (Mother).
¶3 The family’s first encounter with the child welfare system
took place in 2010, when the Children were adjudicated as
neglected by both Father and Mother—who were living together
at the time—and were placed under the jurisdiction of the juvenile
court. Over the next few months, the Division of Child and Family
Services (DCFS) provided services to the family in an effort to
address the concerns raised, and the case proceeded successfully,
with the court terminating its jurisdiction in 2011.
¶4 In or about 2011, Father relocated to Louisiana, while
Mother and the Children remained in Utah. At some point
thereafter, Mother asked Father to take over caring for the
Children for a while. The Children lived with Father in Louisiana
for several years, 2 until Father relocated to Colorado in July 2016
to seek better work opportunities. At that point, Father asked
Mother to take the Children back for the following school year;
2. The juvenile court found that the Children were with Father in
Louisiana “for two years,” but Father testified that the Children
were with him in Louisiana for five years, from when the Children
were “2 and 4 up until” they were “7 and 9 years old.”
20210520-CA 2 2022 UT App 68In re K.S.
his expectation was that they would return to his care after the
school year ended. But over the ensuing months, communication
between Father and Mother deteriorated; after that, Father had no
in-person contact with the Children and only sporadic telephonic
communication, and the Children did not ever return to Father’s
care. Eventually, Father returned to Louisiana.
¶5 In January 2019, Mother contacted Father and asked him to
come to Utah from Louisiana to pick up C.S., who was apparently
exhibiting discipline problems. Father obliged, and arranged to
rent a car and take time off work to drive to Utah. When he
arrived, however, Mother refused to allow Father to take either of
the Children, and he returned to Louisiana without them.
¶6 A few months later, in April 2019, DCFS filed a petition for
protective supervision, alleging that Mother had “substance
abuse issues” and asking the juvenile court to find the Children
abused and neglected by Mother and dependent as to Father. At
a pretrial hearing held soon after the filing of the petition, Father
appeared telephonically and voluntarily waived his right to
counsel. He entered a general denial as to any allegations against
him and requested another hearing on the matter. The court
scheduled another pretrial hearing for the following month, and
explained to all parties, including Father, that they had the right
to an attorney at future hearings, even if they could not afford one
on their own; the court also provided all parties with instructions
on how to apply for a court-appointed attorney.
¶7 The following month, after Mother tested positive for
illegal drugs and indicated her desire to enter an inpatient
treatment program, DCFS filed a motion asking the court to
authorize DCFS to remove the Children from Mother’s home. A
shelter hearing was held on May 9, 2019 to address the motion;
Father again appeared telephonically and again waived his right
to counsel. At the hearing, the court found that removal of the
Children from Mother’s home was in their best interest, and
20210520-CA 3 2022 UT App 68In re K.S.
transferred temporary custody and guardianship to DCFS. After
Father asked the court “about having the [C]hildren placed with
him,” the court ordered DCFS to “investigate the safety and
appropriateness of the non-custodial parent or relatives to assume
custody” of the Children.
¶8 Upon Mother’s loss of custody, DCFS initially placed the
Children with Mother’s ex-husband (Stepfather). It soon became
apparent, however, that C.S. required more one-on-one attention
than Stepfather could provide, so DCFS then placed C.S. with
several foster families, each for a short time. Eventually, DCFS
placed C.S. with his elementary school principal (Foster Mother)
and her husband (collectively, Foster Parents), who signed up to
become foster parents specifically for C.S; he has lived with Foster
Parents ever since. K.S. remained with Stepfather for a time, then
was placed with a foster family for a short period after Stepfather
relocated, but in 2020 she went to live with Stepfather in his new
location. As of the time of trial, C.S. was living with Foster Parents
and K.S. was living with Stepfather; both Children were doing
well in their respective placements and were proceeding toward
adoption with those families.
¶9 On May 16, 2019, one week after the shelter hearing, the
court held another hearing at which Father appeared
telephonically. The court again explained to Father “the process
to request a public defender,” and emailed Father the relevant
request form, which Father acknowledged receiving. The court
ordered Mother and Father to participate in a mediation in early
June 2019, but Father did not appear at the scheduled mediation.
The court also scheduled another hearing for June 20, 2019, but
Father did not appear at that hearing either, despite the court’s
attempt to reach him via telephone. At the June 20 hearing, the
court adjudicated the Children neglected by Mother.
¶10 Based on Father’s failure to appear at both the mediation
and the June 20 hearing, and based on the fact that he had failed
20210520-CA 4 2022 UT App 68In re K.S.
to answer the State’s petition, the State filed a motion asking the
court to “enter a default” against Father. The court granted the
motion and later entered a default judgment against Father. 3
¶11 The court held a review hearing in October 2019, and
Father appeared by phone. During the hearing, Father “expressed
a desire” to have the Children placed with him in Louisiana.
Mother objected, asserting that the Children were “afraid” of
3. In the default judgment, the court stated that the Children were
“neglected . . . by reason of the fault or habits of” Father. In its
petition, however, DCFS had alleged only that the Children were
dependent as to Father. The default judgment should therefore
have stated that the Children were dependent as to Father, not
that Father neglected them. While unfortunate, this mistake does
not appear to have had any specific negative consequences for
Father; indeed, even a dependency finding would have been
sufficient to bring the Children within the jurisdiction of the
juvenile court. See Utah Code Ann. § 80-1-102(17) (LexisNexis
Supp. 2021) (stating that a “dependent child” is “a child who is
without proper care through no fault of the child’s parent,
guardian, or custodian”); id. § 80-3-405(2)(a)(i) (“The juvenile
court may vest custody of an abused, neglected, or dependent
minor in the division or any other appropriate person.”). And
although the juvenile court later found, after the termination trial,
that Father had neglected the Children, that finding was based on
its determination that Father had abandoned the Children, and
not on its earlier erroneous default judgment.
20210520-CA 5 2022 UT App 68In re K.S.
Father,4 and the court ordered “an expedited ICPC[5] with
Louisiana to allow DCFS to . . . determine if [placing the Children
with Father] is a proper placement.”
¶12 In January 2020, while DCFS was “working on the ICPC,”
the court held another review hearing, but Father again failed to
appear, and did not answer the phone when the court called him.
Father did, however, appear at a subsequent hearing in early June
2020 (held via videoconference), and for the first time claimed to
have filled out and sent in the indigency forms requesting
appointment of a public defender. The court indicated that it had
not yet received the completed forms, but in light of Father’s
request for counsel—and at the urging of appointed counsel for
Mother—the court went ahead and appointed an attorney to
represent him anyway, at least on a temporary basis. From that
point forward, Father has always been represented by counsel in
this matter.
¶13 At another hearing a week later, Father’s attorney
appeared but Father did not, despite the court’s attempt to contact
him. The court indicated, however, that it had received the
4. K.S. later testified that Father was physically abusive when the
Children lived with him; in particular, she stated that he would
“hit [the Children] with a belt” and would make them “kneel
down on dry rice for about four hours or so.” She also testified
that she gets “really scared” when she is with him “to a point
where [her] stomach starts hurting” and she “start[s] shaking.”
5. The abbreviation “ICPC” refers to the Interstate Compact on
Placement with Children, an interstate agreement that has been
adopted by all fifty states. See Utah Code Ann. § 62A-4a-701
(LexisNexis 2018). The ICPC allows child welfare agencies from
different states to cooperate regarding placement of children
across state lines. What the juvenile court meant when it ordered
“an expedited ICPC” is discussed below, in Part II.
20210520-CA 6 2022 UT App 68In re K.S.
completed indigency forms from Father, and it appointed him
counsel on a permanent basis.
¶14 At a continued permanency hearing in late June 2020,
Father appeared via videoconference, as did his attorney. During
the hearing, the court inquired of Father as to why he had not
remained in contact with the Children, and Father indicated that
it was “because of his work”; the court found that though Father
“did work on the oil rigs,” he had “the opportunity to contact [the
Children] and did not.”
¶15 On June 30, 2020, Louisiana child welfare authorities sent a
letter to DCFS “in reference to” DCFS’s “inquiry regarding a
home study request” for Father. Louisiana authorities indicated
that they had made six unsuccessful attempts to contact Father
before finally reaching him on the seventh attempt and
scheduling an appointment for an interview. On the date of the
scheduled interview, however, Father called and canceled,
apparently “because of work,” and the interview was
rescheduled. On the rescheduled date, Louisiana authorities went
to Father’s home, but he told them that he was about to move and
that he would not be living there when the Children might
possibly be staying with him, so the authorities “did not complete
a home assessment on that home.” Father told the Louisiana
authorities that he would call them with his new address, but he
never did, and the authorities’ subsequent “attempts to reach him
were futile.” Some five months later, Father finally contacted
them and told them his phone had been broken. Louisiana
authorities closed the case due to Father “being noncompliant.”
¶16 Later that summer, DCFS filed a petition seeking
termination of both Mother’s and Father’s parental rights as to the
Children. With regard to Father, DCFS alleged the existence of
several grounds for termination, including abandonment, and
asserted that it was in the Children’s best interest that his parental
rights be terminated. At a subsequent hearing, the court changed
20210520-CA 7 2022 UT App 68In re K.S.
the primary permanency goal from reunification to adoption,
with the intent that Stepfather would adopt K.S. and Foster
Parents would adopt C.S. Another mediation was scheduled, at
which Father did appear, but it was unsuccessful.
¶17 A few weeks later, after another hearing and at the
recommendation of the guardian ad litem, the court concluded
that any subsequent contact between Father and the Children
should be conducted either through the Children’s therapists or
the guardian ad litem. The court also imposed discovery and
disclosure orders as the parties prepared for a trial on DCFS’s
termination petition.
¶18 In November 2020, Father filed a motion asking the court
to authorize a team of independent expert therapists, paid for by
DCFS or the county, to assess Father’s relationship with the
Children and issue a report. DCFS did not oppose the motion, and
the court subsequently granted it. It then took several months to
select the experts, who were officially appointed in March 2021,
and the evaluation was finally scheduled to take place in April
2021. But Father failed to appear for the evaluation, and it was
therefore not completed as scheduled. Father asked the court to
postpone the trial dates so that the assessment could be
rescheduled, but the court denied that request.
¶19 The court held a three-day trial in June 2021 to consider the
State’s termination petition. At trial, the court heard testimony
from the Children—ages 13 and 12 at the time—both of whom
stated that they were happy and thriving in their respective
placements and that neither had any desire to live with (or even
see) Father again. The State presented testimony from the
Children’s therapist, who provided a summary of each child’s
respective behavioral issues and detailed the Children’s shared
anxiety regarding Father. The State also offered testimony from a
DCFS caseworker who testified that Father had consistently failed
to communicate with her.
20210520-CA 8 2022 UT App 68In re K.S.
¶20 For his part, Father introduced testimony from his fiancée
and also testified on his own behalf. Both averred that Father was
an active and attentive father who had attempted to maintain
contact with the Children throughout their entire lives. Father
acknowledged, however, that he had failed to maintain
communication with the Children for at least one six-month
period, attributing that failure in part to a broken cell phone.
Lastly, the court heard testimony from Stepfather and Foster
Mother, who testified that the Children were doing well and were
relieved to no longer be forced to communicate with their parents.
Both also testified that they would happily pursue adoption if
given the opportunity. Mother did not appear at trial.
¶21 After taking the matter under advisement, the court issued
a written decision terminating the parental rights of both Mother
and Father. 6 The court first found that DCFS had made a “fair and
serious attempt” to reunify the Children with their parents. Next,
the court found at least three separate statutory grounds—
including abandonment—for termination of Father’s parental
rights. Finally, the court concluded that termination of Father’s
parental rights was in the Children’s best interest and was strictly
necessary. In assessing the Children’s best interest, the court
found that the Children were both doing significantly better in
their respective placements than they had been doing in the
custody of either parent; the court additionally noted that the
Children had formed meaningful relationships with their foster
families and that disrupting those relationships would be
detrimental to their well-being. The court also emphasized the
fact that the Children expressed a strong desire to be adopted and
no desire to have any kind of a relationship with Father.
6. Mother is not a participant in this appeal, and the court’s order
terminating her rights is not at issue here.
20210520-CA 9 2022 UT App 68In re K.S.
ISSUES AND STANDARDS OF REVIEW
¶22 Father appeals the juvenile court’s order terminating his
parental rights, and asks us to consider three issues. First, he
alleges that the court “violated [his] right to counsel by having
repeated hearings where Father was unrepresented.” If this issue
were preserved for our review, we would review it for
correctness. See State v. King, 2018 UT App 190, ¶ 10, 437 P.3d 425(“Whether a defendant has the right to counsel during a particular
phase of [the] proceedings is a constitutional issue that presents a
question of law that we review for correctness.”). But Father
acknowledges that this issue is not preserved for appellate review,
and asks us to apply plain error review. “To demonstrate plain
error, a defendant must establish that (i) an error exists; (ii) the
error should have been obvious to the trial court; and (iii) the error
is harmful.” State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443(quotation simplified). 7
¶23 Second, Father contends that the juvenile court erred by
determining that it could not place the Children with him in
7. This court recently held that plain error review is generally not
available to civil litigants. See Kelly v. Timber Lakes Prop. Owners
Ass’n, 2022 UT App 23, ¶ 44. We left open the possibility,
however, that plain error review may still be available in certain
types of civil cases that involve significant fundamental rights,
including cases—like this one—that involve “termination of
parental rights.” Id. ¶ 11 n.10. Because it remains unsettled
whether plain error review is available in cases like this one, and
because neither party asks us to conclude that plain error review
is unavailable here, we proceed to analyze Father’s claims, where
appropriate, for plain error. See, e.g., Miner v. Miner, 2021 UT App
77, ¶ 11 n.3, 496 P.3d 242 (stating that, where the issue remains
unsettled, and where “both parties appear to assume the
propriety of plain error review” in the case at hand, the court
would apply plain error review where appropriate).
20210520-CA 10 2022 UT App 68In re K.S.
Louisiana absent an ICPC review by Louisiana authorities. As
with the first issue, Father acknowledges that he did not object to
the court’s action and that his objection is therefore unpreserved,
but nevertheless asks us to review the issue for plain error.
¶24 Third, Father assails the merits of the juvenile court’s
determination to terminate his parental rights. He contends that
there exists insufficient evidence to support the court’s
determinations that there are statutory grounds for termination
and that termination was in the Children’s best interest. “The
ultimate conclusion that a parent is unfit or that other grounds for
termination have been established is a legal question, but such
decisions rely heavily on the juvenile court’s assessment and
weighing of the facts in any given case.” In re J.M., 2020 UT App
52, ¶ 22, 463 P.3d 66 (quotation simplified). We thus afford a “high
degree of deference to a juvenile court’s decision with regard to
the existence of statutory grounds, and overturn it only when the
result is against the clear weight of the evidence or leaves us with
a firm and definite conviction that a mistake has been made.” Id.(quotation simplified). And we apply this same deferential
standard to a juvenile court’s decision that termination of a
parent’s rights is in a child’s best interest. See In re E.R., 2021 UT
36, ¶¶ 7, 12, 496 P.3d 58.
ANALYSIS
I
¶25 Father first argues that the juvenile court violated his right
to counsel by holding hearings while Father was unrepresented.
We find Father’s argument unpersuasive, because Father waived
his right to counsel at the first two hearings, and was appointed
counsel as soon as he indicated that he desired a court-appointed
attorney and that he had completed the indigency request form.
Under these circumstances, the juvenile court did not err.
20210520-CA 11 2022 UT App 68In re K.S.
¶26 Father certainly had the right to be represented by counsel
from the outset of these proceedings. See Utah Code Ann. § 80-3-
104(2)(a) (LexisNexis Supp. 2021) (“The parent or guardian of a
minor who is the subject of an abuse, neglect, or dependency
petition has the right to be represented by counsel, and to present
evidence, at each hearing.”). 8 As a parent facing termination of his
parental rights, Father had the right to be represented by a court-
appointed attorney, at no cost to himself, if he did “not knowingly
and voluntarily waive the right to counsel” and was found to be
“indigent.” See id. § 78B-22-201(1)-(2) (LexisNexis Supp. 2021); see
also Utah R. Juv. P. 35(a) (“At the commencement of the initial
pre-trial hearing, if the parent . . . appears pro se, the court shall
advise the parent . . . of the right to the assistance of counsel at all
stages of the proceeding including the right to apply to the court
for the appointment of counsel if indigent.”).
¶27 At the first two hearings at which Father telephonically
appeared, he voluntarily waived his right to counsel, and he does
not now, on appeal, claim otherwise. At the first hearing, the
juvenile court explained to Father that he had the right to an
attorney at that hearing and at all future hearings, even if he could
not afford one, and gave him instructions as to how to apply for a
court-appointed attorney if he later changed his mind and
decided he wanted one. The court reiterated these instructions at
Father’s third hearing, this time also emailing Father the relevant
request form, which Father acknowledged receiving. 9 The court
8. Some of the statutes cited in this section have been subject to
recent revision. Where the recent revisions have not materially
changed the statutes as concerns this case, we cite the current
version of the statutes for convenience.
9. The record submitted to us does not contain transcripts of these
early hearings; the information included here comes from the
(continued…)
20210520-CA 12 2022 UT App 68In re K.S.
then scheduled another hearing, but Father did not appear at that
hearing or at a scheduled mediation, and the court then (at the
State’s request) entered default against Father.
¶28 Father’s next telephonic appearance was at a hearing a few
months later, where he reiterated his request that the Children be
placed with him following their removal from Mother’s custody,
and where the court ordered “an expedited ICPC.” The record
contains no indication that Father requested a court-appointed
lawyer at this hearing. And Father did not appear at the next
hearing scheduled in the case.
¶29 Father did, however, appear at a subsequent hearing in
June 2020 (held via videoconference), and for the first time
court’s minute entries summarizing events at the hearings. Those
minute entries indicate that Father’s waiver of counsel was
“knowing and willing.” Because we do not have access to the
transcripts of these hearings, we must presume the regularity of
the proceedings occurring during those hearings, including a
presumption that the waiver of counsel described in the minute
entries was knowing and voluntary. See Capital One Bank (USA),
NA v. Roberts, 2014 UT App 120, ¶ 2, 327 P.3d 1226 (per curiam)
(“In the absence of the transcript on appeal, the reviewing court
presumes the regularity of the proceedings below.”).
Nevertheless, we take this opportunity to remind juvenile courts
of the importance of taking appropriate steps, including proactive
steps, to ensure that all parents facing termination of their
parental rights have the opportunity to be represented by counsel,
and that all waivers of the right to counsel are knowing and
voluntary. See State v. Frampton, 737 P.2d 183, 187 (Utah 1987)
(stating that “it is the trial court’s duty to determine if [a
defendant’s] waiver is a voluntary one which is knowingly and
intelligently made,” and that “a colloquy on the record between
the court and the accused is the preferred method of ascertaining
the validity of a waiver”).
20210520-CA 13 2022 UT App 68In re K.S.
requested an attorney and claimed to have filled out and sent in
the indigency forms requesting appointment of a public defender.
Although the court had not yet received those forms, it went
ahead and appointed an attorney to represent him anyway, at
least on a temporary basis. From that point forward, Father has
always been represented by counsel in this matter.
¶30 Father’s chief complaint, in this regard, is that the juvenile
court, “instead of insisting on [Father] filling out the [request
form],” “should have taken brief testimony from Father on the
record to determine if he would qualify for counsel.” We see two
problems with this argument.
¶31 First, at his first two appearances, Father expressly and
voluntarily waived his right to an attorney. Individuals have a
constitutional right to represent themselves if they so choose, and
this right is one that courts must respect. See State v. Frampton, 737
P.2d 183, 187 (Utah 1987) (citing Faretta v. California, 422 U.S. 806(1975), and stating that “the sixth amendment to the United States
Constitution . . . implicitly guarantees” the right to self-
representation, and that a person’s “right to conduct his own
defense must be respected and guarded by the courts in harmony
with the right to assistance of counsel, also guaranteed by the
sixth amendment”). In the face of Father’s expressed desire to
represent himself, and his apparent voluntary waiver of his right
to counsel, the juvenile court did not commit error by declining to
take testimony from Father to assess his level of indigency. 10 And
10. In this regard, the case at hand is materially distinguishable
from Buck v. Arkansas Department of Human Services, 548 S.W.3d
231 (Ark. Ct. App. 2018), a case Father relies on to support his
argument. In Buck, the parent never voluntarily waived his right
to counsel. Id. at 233–34. And there is no indication that the parent
in Buck was ever even informed that he had the right to counsel,
or that he was given an opportunity to request the appointment
of counsel. Id.20210520-CA 14 2022 UT App 68In re K.S.
the moment the court perceived that Father wished to withdraw
his waiver and request counsel, the court appointed counsel to
represent him, even before it had received the request form for the
appointment of counsel.
¶32 Second, when a parent requests an attorney, the applicable
rule of procedure gives juvenile courts a choice regarding how
that request should be handled. See Utah R. Juv. P. 35(a) (“If
appointment of counsel is requested, the court may proceed to
examine the parent . . . concerning eligibility for appointed
counsel or the court may continue the pre-trial hearing and
require the parent . . . to file an affidavit or other evidence as
deemed appropriate by the court for a determination as to
eligibility for appointed counsel.”). Certainly, the court could
have done as Father now advocates: it could have proceeded to
examine Father regarding his financial circumstances, during the
hearing and on the record. See id. But the rule affords the court
another option: to require the parent to fill out the form. Id. And
again, Father overlooks the fact that the court appointed him an
attorney as soon as Father’s request for one was made clear, even
before the court had received the form; nothing in the record
indicates that the juvenile court was waiting for the completed
form—as opposed to waiting for Father to actually request
counsel—before appointing counsel.
¶33 Under the circumstances presented here, we perceive no
error—let alone an obvious one—in the juvenile court’s handling
of Father’s right to and request for counsel. On this basis, we reject
Father’s first claim.
II
¶34 Father next takes issue with the juvenile court’s refusal to
immediately place the Children with him once the court removed
them from Mother’s custody. In particular, Father complains
about the court’s decision to order “an expedited ICPC” before
20210520-CA 15 2022 UT App 68In re K.S.
making any decision about placing the Children with him,
asserting that the ICPC has no application in a situation in which
a court is considering placing a child with a noncustodial parent
who lives in another state. Even assuming, for purposes of our
analysis, that Father’s interpretation of the ICPC is the better one,
we nevertheless find his arguments unpersuasive.
¶35 The ICPC—the Interstate Compact on Placement of
Children—is a uniform law, adopted in all fifty states, that sets
rules for coordinating the placement of children across state lines.
See Utah Code Ann. § 62A-4a-701 (LexisNexis 2018). As relevant
here, the ICPC mandates that no state “shall send . . . any child for
placement in foster care or as a preliminary to a possible adoption
unless” certain conditions are met, including a requirement that
“the appropriate public authorities in the receiving state” provide
written notification to the sending state that “the proposed
placement does not appear to be contrary to the interests of the
child.” Id. § 62A-4a-701 art. III(1), (2)(f). Father argues—with some
force—that the plain language of the ICPC indicates that its
requirements apply only to placements for “foster care” or for
purposes of facilitating an “adoption,” and not to placements with
a noncustodial parent. Several jurisdictions have interpreted the
ICPC in this manner. See, e.g., McComb v. Wambaugh, 934 F.2d 474,
482 (3d Cir. 1991) (concluding that “the [ICPC] does not apply
when a child is returned by the sending state to a natural parent
residing in another state”); Arkansas Dep’t of Human Services v.
Huff, 65 S.W.3d 880, 888 (Ark. 2002) (“Based upon . . . the plain
language of the statute, we hold that the [ICPC], read as a whole,
was intended only to govern placing children in substitute
arrangements for parental care, such as foster care or adoption.”);
In re C.B., 116 Cal. Rptr. 3d 294, 299 (Ct. App. 2010) (“In our view,
the notice provisions do not apply to a placement with a parent.”);
In re Emoni W., 48 A.3d 1, 6 (Conn. 2012) (agreeing with the lower
court that the ICPC “does not apply to out-of-state noncustodial
parents”); In re Alexis O., 959 A.2d 176, 182 (N.H. 2008)
20210520-CA 16 2022 UT App 68In re K.S.
(concluding that the ICPC “was not intended to apply when a
child is returned by the sending state to a natural parent residing
in another state” (quotation simplified)); In re D.F.-M., 236 P.3d
961, 966 (Wash. Ct. App. 2010) (“We are persuaded that the ICPC
governs only the placement of children in substitute
arrangements for parental care.”).
¶36 Several other jurisdictions, by contrast, have interpreted
the ICPC to apply to placements with noncustodial parents. See,
e.g., Arizona Dep’t of Econ. Sec. v. Stanford, 323 P.3d 760, 764 (Ariz.
Ct. App. 2014) (concluding that the ICPC applies “to placement
with parents and relatives” (quotation simplified)); Green v.
Division of Family Services, 864 A.2d 921, 926 (Del. 2004) (stating
that the ICPC “governs the children’s placement with
[noncustodial parents]”); Department of Children & Families v. C.T.,
144 So. 3d 684, 686 (Fla. Dist. Ct. App. 2014) (interpreting the ICPC
to apply “when a court exercises its jurisdiction to place a child
with an out-of-state parent”); State ex rel. Juvenile Dep’t v. Smith,
811 P.2d 145, 147 n.4 (Or. Ct. App. 1991) (concluding that the ICPC
“does apply to a child who is sent to another state for placement
with parents or relatives,” as long as “someone other than a parent
or relative makes the placement”); see also In re adoption of Warren,
693 N.E.2d 1021, 1024 (Mass. App. Ct. 1998) (applying the ICPC
to a noncustodial parent based on a specific Massachusetts
regulation). Some of these courts relied on a “regulation” issued
in connection with the ICPC that provides that “[p]lacement of a
child requires compliance with the [ICPC] if such placement is
made under one of the following four types of placement
categories,” including “[p]lacements with parents and relatives.”
See American Public Human Services Ass’n, ICPC Regulations,
Regulation 3, https://aphsa.org/OE/AAICPC/ICPC_Regulations.a
spx [https://perma.cc/DA9W-Z4KM] [hereinafter ICPC Regulatio
ns]; see also, e.g., Stanford, 323 P.3d at 764; Green, 864 A.2d at 927–
28. Father criticizes these cases on the ground that some of them
20210520-CA 17 2022 UT App 68In re K.S.
rely on the text of a regulation rather than on the text of the ICPC
itself.
¶37 We acknowledge Father’s point that there exists a sharp
split of authority among courts that have considered the issue,
and we recognize that Utah’s appellate courts, at some point, may
need to weigh in on this question. But in our view, this case does
not present an appropriate opportunity for us to do so because,
even if we presume for purposes of our analysis that Father’s
interpretation of the ICPC—that it has no application to
placements with noncustodial parents—is the better one, Father
still cannot prevail here, for several reasons.
¶38 First, as already noted, see supra ¶ 23, Father did not lodge
any objection to the juvenile court’s decision to request “an
expedited ICPC,” and therefore Father did not preserve this issue
for our review. As a consequence, we review this issue only for
plain error, a standard that requires Father to demonstrate not
only error but obvious error on the part of the court. See State v.
Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443. A court’s error is “not plain
where there is no settled appellate law to guide [it].” See State v.
Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997); see also State v. Dean,
2004 UT 63, ¶ 16, 95 P.3d 276 (noting that, to establish obvious
error, a party “must show that the law governing the error was
clear at the time the alleged error was made”). And we have
recently held that, where there is no Utah appellate law on the
question and there exists a genuine “split of authority” in other
jurisdictions on the question, the law is “far from plainly settled,
and therefore any alleged error in the court’s analysis was not
obvious.” See Freight Tec Mgmt. Group Inc. v. Chemex Inc., 2021 UT
App 92, ¶¶ 40–41, 44, 499 P.3d 894 (quotation simplified). Here,
no Utah appellate court has yet offered an interpretation of the
ICPC in this context, and courts in other jurisdictions are sharply
divided. Under these circumstances, even if we assume that the
juvenile court should have espoused an interpretation of the ICPC
20210520-CA 18 2022 UT App 68In re K.S.
in line with Father’s, its decision to implicitly adopt the opposite
interpretation cannot fairly be characterized as obvious error.
¶39 Second, Utah’s shelter statute does not permit the juvenile
court—without any investigation whatsoever—to immediately
place children removed from a custodial parent’s home with a
noncustodial parent. See Utah Code Ann. § 80-3-302(2)
(LexisNexis Supp. 2021). That statute does instruct juvenile
courts, after removing a child from a custodial parent’s care, to
“determine whether there is another natural parent with whom
the child was not residing at the time . . . who desires to assume
custody of the child,” and to “place the child with that parent
unless the juvenile court finds that the placement would be unsafe
or otherwise detrimental to the child.” Id. § 80-3-302(2)(a), (b). But
before making any such placement, the court “shall make a
specific finding regarding the fitness” of the noncustodial parent
and “the safety and appropriateness of the placement.” Id. § 80-3-
302(2)(c)(i). In the course of making that finding, the court “shall,
at a minimum, order [DCFS] to visit the [noncustodial] parent’s
home” and conduct appropriate “background check[s]” of the
noncustodial parent. Id. § 80-3-302(2)(c)(ii). And the court “may
order . . . any further investigation” beyond those minimum
requirements. Id. § 80-3-302(2)(c)(iii).
¶40 In this case, because Father resided in Louisiana, it was
impractical for the court to order DCFS to visit Father’s home, as
the court surely would have done if Father lived in Utah. Instead,
the court needed to come up with some mechanism for inspection
of Father’s home in Louisiana. The court, after discussion at the
October 2019 hearing, ordered “an expedited ICPC with
Louisiana to allow DCFS to . . . determine if [placing the Children
with Father was] a proper placement.” No party objected, at the
time, to the court’s decision.
¶41 Father now assails that decision, interpreting it as an order
requiring a “home study” pursuant to the ICPC, and asserting
20210520-CA 19 2022 UT App 68In re K.S.
that such home studies often take far too long and that the court
should have come up with a different and more expeditious way
to satisfy the home-inspection requirements of Utah’s shelter
statute. In particular, Father asserts that instead of ordering a
home study, the court should have “request[ed] a courtesy check
of [Father’s] home,” a measure Father contends is “outside of the
ICPC.” Father asserts that this “would have permitted a quick
evaluation of Father’s home,” and would potentially have
allowed the court to more quickly assess the safety and propriety
of placing the Children with him.
¶42 We assume, for purposes of our analysis, that Father
correctly interprets the juvenile court’s order for “an expedited
ICPC” as an order for an ICPC home study. Neither the State nor
the guardian ad litem takes issue with this characterization, and
the Louisiana child welfare authorities appear to have interpreted
the request made to them as asking for an ICPC home study. But
Father does not point to any evidence in the record, or to any legal
authority, indicating that a non-ICPC-related “courtesy check”
would have been appreciably quicker than the “expedited” home
study the court apparently ordered. 11 In addition, if a court orders
a courtesy check (as opposed to a home study), “the responsibility
for credentials and quality of the ‘courtesy check’ rests directly
with the sending court/agency” and does not come accompanied
by “the protection of the ICPC home study process.” See ICPC
Regulations, Regulation 3, para. 3(b). Father makes no effort to
persuade us that the juvenile court, at the time it ordered the
“expedited ICPC,” had ready access to reputable non-ICPC-
related agencies, companies, or individuals in Louisiana who
11. ICPC regulations indicate that home studies are “to be
completed within sixty (60) calendar days.” See ICPC Regulations,
Regulation 2, para. 7. Father offers no information indicating how
long home studies actually take, or comparing the typical
duration of home studies with courtesy checks.
20210520-CA 20 2022 UT App 68In re K.S.
could have conducted a “courtesy check.” On this record, we are
hard-pressed to conclude that the juvenile court erred at all by
selecting an “expedited” ICPC home study over a courtesy check,
let alone that the court committed an obvious error that it was
obligated to correct sua sponte.
¶43 Moreover, Father fails to account for his own role in
delaying the ICPC home study. Louisiana child welfare officials,
acting pursuant to the ICPC, made six unsuccessful efforts to
contact Father and schedule an interview, before finally
connecting with him on their seventh attempt. On the date of the
scheduled interview, however, Father called and rescheduled.
Later, on the rescheduled date, Louisiana authorities went to
Father’s home to conduct the inspection, but he told them that he
would not be living in that home much longer, so Louisiana
authorities “did not complete a home assessment on that home.”
Father told the authorities that he would call them with his new
address, but he made no contact with them for some five months;
Louisiana officials attempted to contact Father during this time
but were unable to do so. Louisiana authorities eventually closed
the case due to Father “being noncompliant.” Thus, even if we
were to assume that the juvenile court committed obvious error
by ordering an ICPC home study instead of a “courtesy check,”
Father has not met his burden, on this record, of demonstrating
that he was prejudiced by any error.
¶44 Finally, Father fails to grapple with the fact that, at least as
to K.S., he was never adjudicated as the legal father. Thus, even if
we were to assume that Father’s interpretation of the ICPC—that
it does not apply to placements with noncustodial parents—was
the correct one, the court would still have been on completely
solid ground to apply the ICPC to its decision as to whether to
place K.S. with Father.
¶45 For all of these reasons, Father has not carried his burden
of demonstrating that the juvenile court plainly erred by ordering
20210520-CA 21 2022 UT App 68In re K.S.
“an expedited ICPC” before placing the Children with Father in
Louisiana.
III
¶46 Father’s final argument is that there existed insufficient
evidence to support the juvenile court’s decision to terminate his
parental rights. Before terminating a parent’s rights, a court must
engage in a two-part analysis. First, the court must find that at
least one statutory ground for termination is present; second, the
court must conclude that termination of the parent’s rights is in
the best interest of the affected children. See In re B.T.B., 2020 UT
60, ¶¶ 19–20, 472 P.3d 827. The juvenile court engaged in that two-
part analysis here, finding several separate statutory grounds for
terminating Father’s rights, and concluding that termination was
in the Children’s best interest. Father challenges both parts of the
court’s analysis, and we discuss each one, in turn.
A
¶47 In this case, the juvenile court found that at least three 12
separate statutory grounds existed for terminating Father’s
parental rights: abandonment, neglect, and the fact that Father
had made only “token efforts to support or communicate with”
the Children. The presence of any one statutory ground “is
sufficient to fulfill the first element of the termination test.” See In
re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66. Thus, we will affirm
the juvenile court’s determination regarding statutory grounds if
12. The court also found that the Children’s “parents” failed to
remedy the circumstances that caused the Children to be removed
from Mother’s care. The parties take different positions with
regard to whether, and to what extent, this finding might apply to
Father, and given that other statutory grounds for termination
exist here and are supported by the evidence, we need not explore
this additional finding further.
20210520-CA 22 2022 UT App 68In re K.S.
we conclude that the court’s determination as to any one of them
is not subject to reversal. Id. In this case, we focus on
abandonment, and conclude that the juvenile court did not err in
determining that Father had abandoned the Children.
¶48 Our supreme court has outlined a two-part test for
abandonment: “First, the petitioner must demonstrate that the
respondent parent has engaged in conduct that implies a
conscious disregard for his or her parental obligations. Second,
the petitioner must show that the respondent parent’s conduct led
to the destruction of the parent-child relationship.” In re T.E., 2011
UT 51, ¶ 20, 266 P.3d 739. This judicial test is “supplemented” by
a statute stating that it is “prima facie evidence of abandonment”
if a parent “fail[s] to communicate with the child by mail,
telephone, or otherwise for six months” or “fail[s] to . . . [show]
the normal interest of a natural parent, without just cause.” See id.
¶ 21 (quotation simplified); Utah Code Ann. § 80-4-302(1)(b)–(c)
(LexisNexis Supp. 2021). 13 “[B]y establishing prima facie evidence
of abandonment, a petitioner creates a presumption that the
respondent parent has abandoned the child.” In re T.E., 2011 UT
51, ¶ 21. Under these legal principles, if the petitioner
demonstrates that the parent failed to communicate with the child
for any six-month period, a presumption is created both (a) that
the parent “consciously disregarded . . . his parental obligations”
and (b) that the parent’s “conduct has led to the destruction of the
13. The statute also indicates that “it is prima facie evidence of
abandonment that the parent . . . [,] although having legal custody
of the child, [has] surrendered physical custody of the child, and
for a period of six months following the surrender [has] not
manifested to the child or to the person having physical custody
of the child a firm intention to resume physical custody or to make
arrangements for the care of the child.” Utah Code Ann. § 80-4-
302(1)(a) (LexisNexis Supp. 2021). The juvenile court did not
mention this additional ground in its findings.
20210520-CA 23 2022 UT App 68In re K.S.
parent-child relationship.” Id. Once this presumption has been
established, the burden shifts to the parent to rebut it, which the
parent may attempt to do by presenting evidence “indicating that
[the parent] did not consciously disregard . . . parental obligations
or that [the] conduct did not lead to the destruction of the parent-
child relationship.” See id. ¶¶ 21–22. After considering the
parent’s rebuttal evidence, the juvenile court must determine
whether “the petitioner has established abandonment by clear
and convincing evidence.” Id. ¶ 23.
¶49 Here, the juvenile court found prima facie evidence of
abandonment for two reasons. First, it found that Father had
“failed to communicate in any way with” the Children “for six
months or more.” Father did not contest at trial, and does not
contest now, that there was in fact at least one six-month period
during which he had no communication with the Children. 14
Indeed, K.S.—who was 13 at the time of trial—testified that she
had not seen Father since she was seven years old, and that she
did not remember the last time she spoke with him. C.S. testified
similarly, alleging that he had not seen Father in years, and that
he “never” had phone calls or video chats with him. Second, the
court found that Father had “not shown the normal interest of a
natural parent without just cause.” On these bases, the court
found that the State had established a prima facie case of
abandonment, and we agree with the juvenile court that clear and
convincing evidence supported this conclusion.
¶50 Father attempted to rebut the abandonment presumption
at trial by attributing his inattention to a broken cell phone. On
14. The juvenile court did not specifically set forth the dates of the
six-month period in question, but there is evidence indicating that
Father had no contact with the Children from December 2019 to
June 2020, a period that does not include any of the time following
the court’s order that any contact between Father and the
Children be had, if at all, through DCFS or therapists.
20210520-CA 24 2022 UT App 68In re K.S.
appeal, Father again directs our attention to the broken phone,
which he asserts should “serve to interrupt” the six-month period
of no communication, and he asserts that he was otherwise
unfamiliar with how to participate in a child welfare case. He also
notes that, when Mother asked him to, he drove to Utah in an
effort to resume custody of the Children. The juvenile court found
Father’s testimony on many of these issues to be “unreliable and
not credible,” and found his rebuttal evidence unpersuasive,
noting that Father’s phone was broken for no more than two
months, that “there were other means at his disposal” by which
he could have contacted the court or DCFS to “arrange visitation,”
and that a parent exhibiting normal interest in his children would
have availed himself of one or more of these other means. We
discern nothing erroneous about this conclusion, and we agree
with the juvenile court that clear and convincing evidence
supported its determination that Father had consciously
disregarded his parental obligations and that Father’s conduct
contributed significantly to the evident deterioration of the
relationship between Father and the Children.
¶51 Accordingly, we reject Father’s challenge to the juvenile
court’s determination that at least one statutory ground for
terminating Father’s rights was present here. See In re J.M., 2020
UT App 52, ¶ 30.
B
¶52 The second part of the termination test requires a court to
determine whether termination of the parent’s rights is in the best
interest of the affected children, an inquiry that includes
consideration of whether termination is “strictly necessary to
promote the [children’s] welfare and best interest.” See In re B.T.B.,
2020 UT 60, ¶ 76, 472 P.3d 827. The juvenile court concluded that
termination of Father’s rights was in the Children’s best interest
and was strictly necessary to promote that interest. In this case,
20210520-CA 25 2022 UT App 68In re K.S.
there exists sufficient support in the record to sustain the juvenile
court’s determination.
¶53 “The ‘best interest’ test is broad, and is intended as a
holistic examination of all the relevant circumstances that might
affect a child’s situation.” In re H.F., 2019 UT App 204, ¶ 14, 455
P.3d 1098 (quotation simplified). This broad examination “should
be undertaken from the child’s point of view, not the parent’s.”
See In re B.T.B., 2020 UT 60, ¶ 63 (quotation simplified). In
connection with this inquiry, a court should “consider whether
something short of termination would serve the child’s welfare
and best interest,” id. ¶ 71, and should terminate a parent’s rights
only after considering the “legislatively mandated position that
wherever possible, family life should be strengthened and
preserved,” and only after determining that “a different option is
in the child’s best interest and that termination is strictly
necessary to facilitate that option,” id. ¶ 66 (quotation simplified).
¶54 The juvenile court followed that process here, and its
conclusions are supported by ample evidence in the record. The
court first found that the Children were “doing much better in
their respective placements” than they ever had in Father’s
custody, and that the Children adamantly desired to sever contact
with Father so that they could be adopted. As noted, both
Children expressed a desire, during their trial testimony, to be
adopted by their foster families and not have a relationship with
Father. K.S. even went so far as to state that, if forced to live with
Father, she would run away. The court additionally found that
both Children had developed lasting, meaningful relationships
with their foster families and that disrupting those placements
would be detrimental to their well-being. And Father did not
suggest at trial, and does not suggest now, that there is another
kinship placement or guardianship situation that might serve the
Children’s needs as well as termination. In this situation, we do
not consider the court’s decision to be “against the clear weight of
the evidence,” nor are we left “with a firm and definite conviction
20210520-CA 26 2022 UT App 68In re K.S.
that a mistake has been made.” See In re E.R., 2021 UT 36, ¶ 7, 496
P.3d 58 (quotation simplified). Accordingly, we reject Father’s
challenge to the court’s best interest determination.
CONCLUSION
¶55 The juvenile court did not err, let alone plainly, in the way
it handled Father’s initial waiver of the right to counsel and
eventual request for counsel. The court also did not plainly err in
ordering “an expedited ICPC” home study before considering
whether to place the Children with Father. And we reject Father’s
challenges to the juvenile court’s conclusions that statutory
grounds for termination of Father’s rights were present, and that
termination was in the best interest of the Children.
¶56 Affirmed.
20210520-CA 27 2022 UT App 68